Citation Nr: 1542963
Decision Date: 10/06/15 Archive Date: 10/13/15
DOCKET NO. 07-38 065 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for a neck disability.
2. Entitlement to a higher initial rating for lumbosacral degenerative disc disease L3-L4 and L5-S1 with paravertebral muscle spasm, rated 10 percent prior to October 2, 2012 and 20 percent disabling since that date.
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
B. Elwood, Counsel
INTRODUCTION
The Veteran served on active duty from January 1980 to January 1983 and from September 2002 to February 2003. He also had a period of active duty for special work with the Army National Guard from September 5, 2005 to September 30, 2005.
These matters come before the Board of Veterans' Appeals (Board) from November 2006 and January 2011 decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, Puerto Rico. In the November 2006 decision, the RO denied entitlement to service connection for cervical strain/myositis. In the January 2011 decision, a Decision Review Officer granted service connection for lumbosacral degenerative disc disease L3-L4 and L5-S1 with paravertebral muscle spasm and assigned an initial 10 percent disability rating, effective from October 1, 2005.
In July 2012 and July 2013, the Board remanded the neck issue for further development and to schedule a hearing before RO personnel.
The Veteran testified before a Decision Review Officer at a September 2013 hearing at the RO. A transcript of the hearing has been associated with the file.
The Board remanded the neck and back issues in March 2014 for further development.
In November 2014, the RO assigned an initial 20 percent disability rating for the service-connected back disability, effective from October 3, 2013.
The Veteran had also perfected an appeal with regard to a claim of service connection for a psychiatric disability. In an August 2011 decision, the RO granted service connection for major depression, and thereby resolved the appeal as to that issue.
The Veteran submitted a formal claim for a total disability rating based on individual unemployability (TDIU). That matter is currently being adjudicated by the originating agency and is not ripe for appellate review.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
The Veteran contends that neck disability had its onset at the same time that he injured his back while lifting supplies in New Orleans during his period of active duty for special work in September 2005. In the alternative, he claims that his neck disability is related to lifting heavy supplies while serving as a gunner in service.
A VA examination was conducted in December 2012 and the Veteran was diagnosed as having cervical myositis. The examiner who conducted the examination opined that it was not likely ("less likely") that the neck disability was related to service. This opinion was based on the fact that the Veteran had cervical pain prior to service in July 2002 and was taking medications for neck pain. The first time that the Veteran complained of cervical pain at VA was in February 2007. Also, the Veteran worked as a stone mason and was not using any protection for his "low back." His work was heavy and he was advised to avoid the use of muscle relaxants while working with heavy machinery and driving heavy equipment. All of these things were risk factors to developing neck pain due to his civilian jobs.
The examiner also opined that it was not likely ("less likely") that the Veteran's neck disability was aggravated beyond the natural progression during his period of service in September 2005. The examiner reasoned that a physical examination of the Veteran showed no evidence of atrophy, no sensory deficits, and normal muscle strength (as was the case during two previous examinations in 2006 and 2010). Testing performed in March 2009 showed cervical radiculopathy. The normal examination during the December 2012 examination proved that the Veteran was not developing any neurologic deficit.
The December 2012 opinions are insufficient because although they address whether the Veteran's neck disability was related to his reported injury during his period of service in September 2005, they do not address the Veteran's contention that his neck disability is related to lifting heavy supplies while serving as a gunner in service. Thus, a remand is necessary to obtain a new opinion as to the etiology of the Veteran's current neck disability.
Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c), (d) (2015). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4).
An August 2006 VA psychiatric examination report reveals that the Veteran received treatment for his spinal disability from Dr. Gomez at Damas Hospital. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain the records. If the Veteran does not provide the release, VA must ask the Veteran obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not yet been taken to obtain all relevant treatment records from the above identified facility. As additional records of treatment for a spinal disability may be relevant to the issues on appeal, a remand is necessary to attempt to obtain any additional relevant private treatment records.
Also, updated VA treatment records should be secured upon remand.
Accordingly, the case is REMANDED for the following action:
1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for a neck disability, a back disability, and a psychiatric disability, to include the dates of any such treatment.
The Veteran shall also specifically be asked to complete authorizations for VA to obtain all records of his treatment for a neck disability, a back disability, and a psychiatric disability from Dr. Gomez/Damas Hospital and from any other sufficiently identified private treatment provider from whom records have not already been obtained. All efforts to obtain these records must be documented in the file.
If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA.
If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claims.
2. Obtain and associate with the file all records of the Veteran's treatment from the VA Caribbean Healthcare System dated from August 2013 through January 2014 and from October 2014 through the present; and all such relevant records from any other sufficiently identified VA facility.
All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile.
3. After all efforts have been exhausted to obtain and associate with the file any additional treatment records, schedule the Veteran for a VA examination to determine the nature and etiology of any current neck disability. All indicated tests and studies shall be conducted.
All relevant electronic records contained in VBMS and the Virtual VA system, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review.
For any current neck disability identified (i.e., any neck disability diagnosed since May 2006), the examiner shall answer all of the following questions:
(a) Is it at least as likely as not (50 percent probability or more) that the current neck disability had its clinical onset during the Veteran's periods of service from January 1980 to January 1983 or September 2002 to February 2003, had its clinical onset during his period of active duty for special work in September 2005, had its onset in the year immediately following either period of active service ending in January 1983 and February 2003 (in the case of any currently diagnosed arthritis), is related to the Veteran's reported neck injury which occurred at the same time he injured his back in September 2005, is related to lifting heavy supplies in service while performing his duties as a gunner, or is otherwise the result of a disease or injury in service?
(b) Is it at least as likely as not (50 percent probability or more) that the current neck disability is due to disease or injury permanently aggravated beyond its natural progression during the period of service from September 2002 to February 2003 or the period of active duty for special work in September 2005?
In formulating the above opinions, the examiner shall specifically acknowledge and comment on all neck disabilities diagnosed since May 2006, the Veteran's reported duties in service involving heavy lifting as a gunner, and his reported neck injury while lifting supplies in September 2005.
The absence of clinical evidence of treatment for neck problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.
The examiner must provide reasons for each opinion given.
4. If a benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).